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NO. PR 99-02




This matter came to the attention of Bar Counsel on a report from the Citizenís Bank of a dishonored check in the respondentís IOLTA account. In response to Bar Counselís inquiry, the respondent admitted that he used his IOLTA account to hold his own personal funds in order to avert possible attachment of the funds by the Internal Revenue Service or the Massachusetts Department of Revenue. The one exception to this use involved a $2,000 real estate deposit which the respondent received and deposited into the IOLTA account on behalf of two clients who were selling their home. In this manner, the respondent commingled client funds with his personal funds in the IOLTA account.

The respondent lost track of the real estate deposit funds in the IOLTA account and inadvertently drew on the funds to pay personal expenses. When it came time to release the deposit, the respondent deposited $5,000 of his personal funds into the IOLTA account. Using the funds he had just deposited, the respondent issued a check to his clients for $2,000, the full amount of the real estate deposit they were due.

By using his IOLTA account as a depository for his personal funds in order to avoid possible seizure of the funds by the IRS or the DOR, the respondent violated Canon One, Disciplinary Rules 1-102(A)(4) and (6) (lawyer shall not engage in conduct involving fraud or deceit or other conduct adversely reflecting on fitness to practice); and Canon Nine, Disciplinary Rule 9-102(A) (lawyer shall not deposit personal funds in IOLTA account). By commingling client funds with personal funds in his IOLTA account, and by negligently using the client funds for his own expenses, the respondent violated Canon One, Disciplinary Rules 1-102(A)(4) and (6); and Canon Nine, Disciplinary Rules 9-102(A), (B)(2), and (C) (lawyer shall not commingle personal funds with client funds in IOLTA account, lawyer shall maintain client funds in place of safekeeping).

The Board of Bar Overseers considered in mitigation the fact that the respondent suffered from severe, persistent depression during the time in which this misconduct occurred. This condition interfered with and prevented the respondent from exercising proper judgment in the management of his client funds account. In addition, the respondentís clients agreed that they suffered no deprivation of their funds as a result of the respondentís commingling and misuse of the funds.

For his misconduct, the Board of Bar Overseers voted to impose a public reprimand on the respondent, subject to the respondent: (1) continuing in therapy until his therapist, after consultation with Bar Counsel, recommends termination; (2) attending a continuing legal education program designated by Bar Counsel; and (3) subjecting his client funds account to a quarterly audit by a certified public accountant for a period of two years to ensure the account is being properly maintained. The accountant is also required to make semi-annual reports to Bar Counsel about his review of the respondentís account and to inform Bar Counsel if he discovers any improprieties in the respondentís management or handling of the account.


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